Big Law White Collar Teams Breathe Easy After Key Privacy Ruling

Big Law won a reprieve for a little-discussed yet crucial selling point they offer during moments of crisis: privacy.

A federal appeals court ruling this month in a case related to the FirstEnergy Corp. bribery scandal overturned a lower-court decision that would have made it more difficult for firms to keep communications between clients and lawyers confidential.

The ruling protects white collar investigations practices and shows how changes in the law can affect the bottom lines of law firms. White collar practices have become major revenue drivers at Big Law firms, with top partners in the practice often charging some of the highest billing rates in their firms.

“If you don’t have attorney-client privilege, clients won’t hire lawyers, and the lawyers won’t look for things,” said Sam Buell, a professor at Duke University School of Law who studies white-collar crime. “And that’s not good for the legal system.”

The ruling that sent a chilling signal to Big Law investigations practices came in a shareholder lawsuit against stemming from a bribery scheme involving former Ohio House Speaker Larry Householder (R).

The company hired Jones Day and Squire Patton Boggs for investigations. Plaintiffs’ lawyers sought documents and information related to the probes.

A district court judge ruled the documents must be turned over, saying they were procured to render business, not legal, advice. The US Court of Appeals for the Sixth Circuit disagreed, ruling it doesn’t matter why the lawyers were hired, only that the company sought legal advice.

“The court did a good job of clarifying that there can be too much of a focus on the business purpose of the investigation versus a legal purpose, because there is always a business purpose,” said Greg Brower, a shareholder at Brownstein Hyatt Farber Schreck.

‘Trusted Advisers’

The 39 Big Law firms who filed an amicus brief urging the appeals court to intervene in the case were both arguing points of law and, in effect, also lobbying for the benefit of their own business.

A high ratio of white-collar lawyers was found to correlate with higher law firm profitability in a 2011 paper studying the rise of the practice at the nation’s largest firms. The practice has less rate pressure since the work is urgent and insurers often pay the bills, the paper found.

Covington & Burling partner and former US Attorney General Eric Holder in 2021 was billing $2,295 an hour for a public investigation into discrimination and sexual harassment at Oregon Health & Science University. Rates in Big Law have since grown higher than $3,000 an hour.

Without the protections offered by attorney-client privilege and the work product doctrine, lawyers digging into wrongdoing would be perceived by clients as “threats,” Eric Chaffee, a law professor at Case Western University, wrote in an amicus brief. The benefits of those protections help lawyers become “trusted advisers,” he wrote.

That is common marketing language for Big Law firms. But even so, lawyers don’t typically “sell” those benefits, Chaffee said in an interview.

“I don’t think firms will market attorney-client privilege or the work product doctrine for purposes of really selling their services, but they are important in terms of getting internal corporate investigations done,” he said.

Law firms frequently offer trainings on the issue. And they draft client notes about best practices for “maintaining privilege” so frequently that Chaffee joked they might seem like “nuisance documents.” The hope is that a well-counseled client will more frequently include lawyers in their communications, he said.

“It becomes really important to have those policies in place and to train employees to ensure that privilege is in place and they aren’t disclosing documents that should be protected,” Chaffee said.

White Collar Win

It’s not the first time that a court ruling has protected the economics of Big Law’s white-collar practices.

A prosecution of KPMG executives was dismissed in 2007 when a court ruled government prosecutors had wrongly coerced the company against paying for the legal defense fees of its employees—denying them their counsel of choice.

The ruling helped cement that companies and their insurers would pay Big Law rates, according to a 2011 paper co-authored by Berkeley law professor Charles Weisselberg.

The ruling pointed to a “developing norm” that corporate employees should be represented “by a certain type of counsel—those at the nation’s leading corporate law firms,” Weisselberg wrote.

Some 15 years later, that norm has fully developed. Big Law firms have solidified their grip as the go-to counsel for major corporate investigations. And that stands to remain as courts reinforce the importance of attorney-client privilege.

“Without the privilege, companies might say, ‘Don’t hire lawyers and don’t do the work,’” Buell said. “That may mean less work. But that’s the whole point—to have a rule that incentivizes people to retain lawyers to get the facts and get legal advice based on the facts.”

The case is: In re: FirstEnergy Corporation, 6th Cir. App., 24-03654, 8/7/25.